# C_2019270EN.01001301.xml

| 12.8.2019 | EN | Official Journal of the European Union | C 270/13 |
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12.8.2019

EN

Official Journal of the European Union

C 270/13

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Appeal brought on 15 April 2019 by Associazione Nazionale GranoSalus — Liberi Cerealicoltori & Consumatori (Associazione GranoSalus) against the order of the General Court (First Chamber) delivered on 14 February 2019 in Case T-125/18, Associazione GranoSalus v Commission

(Case C-313/19 P)

(2019/C 270/15)

Language of the case: Italian

Parties

Appellant: Associazione Nazionale GranoSalus — Liberi Cerealicoltori & Consumatori (Associazione GranoSalus) (represented by: G. Dalfino, lawyer)

Other party to the proceedings: European Commission

Pleas in law and main arguments

| 1. | The appeal against the order of the General Court is based on the infringement of the fourth paragraph of Article 263 TFEU and of Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Articles 6 and 13 of the European Convention on Human Rights. |
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1.

The appeal against the order of the General Court is based on the infringement of the fourth paragraph of Article 263 TFEU and of Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Articles 6 and 13 of the European Convention on Human Rights.

| 2. | The appellant, first of all, claims infringement of the fourth paragraph of Article 263 TFEU, in so far as the General Court disregarded the fact that Associazione GranoSalus has standing to bring an action by virtue of the fact that its members have individual standing, since the contested Implementing Regulation (EU) 2017/2324 ‘is of direct and individual concern to them’ as a ‘regulatory act which is of direct concern to them and does not entail implementing measures’.
  In that regard, the association claims that the General Court erred in applying the provision in question, in so far as it considered that the condition of individual concern was not met because ‘some of the applicant’s members are allegedly affected by the contested act in their general capacity as consumers and citizens of the EU’ (paragraph 57 of the order).
  That classification of the members of the applicant GranoSalus is however incorrect in the light of the statute of the association which makes its members, and through them, the association, holders and promoters of an interest relating to the protection of consumers and of agricultural producers via the implementation, in particular, of actions ‘seeking to combat, especially at EU level, any increase in the thresholds of mycotoxins and other contaminants in order to protect the health of consumers and, in particular, children’.
  Since the condition of individual concern is satisfied and that condition is cumulative with respect to that of direct concern, the Court was wrong to rule from that point of view without taking account of it. |
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2.

The appellant, first of all, claims infringement of the fourth paragraph of Article 263 TFEU, in so far as the General Court disregarded the fact that Associazione GranoSalus has standing to bring an action by virtue of the fact that its members have individual standing, since the contested Implementing Regulation (EU) 2017/2324 ‘is of direct and individual concern to them’ as a ‘regulatory act which is of direct concern to them and does not entail implementing measures’.

In that regard, the association claims that the General Court erred in applying the provision in question, in so far as it considered that the condition of individual concern was not met because ‘some of the applicant’s members are allegedly affected by the contested act in their general capacity as consumers and citizens of the EU’ (paragraph 57 of the order).

That classification of the members of the applicant GranoSalus is however incorrect in the light of the statute of the association which makes its members, and through them, the association, holders and promoters of an interest relating to the protection of consumers and of agricultural producers via the implementation, in particular, of actions ‘seeking to combat, especially at EU level, any increase in the thresholds of mycotoxins and other contaminants in order to protect the health of consumers and, in particular, children’.

Since the condition of individual concern is satisfied and that condition is cumulative with respect to that of direct concern, the Court was wrong to rule from that point of view without taking account of it.

| 3. | The association also claims that the General Court was wrong, in its order, to consider that the condition of direct concern required for admissibility, in accordance with the last limb of the fourth paragraph of Article 263 TFEU was not satisfied on account of the alleged existence of national measures implementing the contested Regulation (EU) 2017/2325, giving the reason for its decision in that regard as ‘renewal of marketing authorisations of phytopharmaceutical products containing the active substance “glyphosate”’, such acts being regarded as constituting ‘implementing measures of the contested act, within the meaning of the fourth paragraph, last sentence, of Article 263 TFEU’ (paragraphs 84 and 85 of the contested order).
  The incorrect nature of that assessment is illustrated by the fact, demonstrated by documentary evidence, that the Member State in which the association, and its members, has its headquarters (Italy) received Regulation (EU) 2017/2325 via a communication from the Ministry of Health of 19 December 2017, which merely gave rise to the automatic renewal of the active substance ‘glyphosate’ for a period no longer than five years, while at the same time extending the authorisations relating to phytosanitary products containing glyphosate until 15 December 2022, without any discretionary assessment, even concerning the technical requirements laid down in Annexes I and II to Regulation (EU) 2017/2325.
  The association claims in that regard that, even if the ministerial communication of 19 December 2017 were to be considered to be an implementing measure, the General Court did not take into account the fact that that communication could not be the subject of an action before the national courts because such an action is precluded under Italian law and the relevant case-law (Consiglio di Stato (Council of State), judgment No 6243 of 9 November 2005). |
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3.

The association also claims that the General Court was wrong, in its order, to consider that the condition of direct concern required for admissibility, in accordance with the last limb of the fourth paragraph of Article 263 TFEU was not satisfied on account of the alleged existence of national measures implementing the contested Regulation (EU) 2017/2325, giving the reason for its decision in that regard as ‘renewal of marketing authorisations of phytopharmaceutical products containing the active substance “glyphosate”’, such acts being regarded as constituting ‘implementing measures of the contested act, within the meaning of the fourth paragraph, last sentence, of Article 263 TFEU’ (paragraphs 84 and 85 of the contested order).

The incorrect nature of that assessment is illustrated by the fact, demonstrated by documentary evidence, that the Member State in which the association, and its members, has its headquarters (Italy) received Regulation (EU) 2017/2325 via a communication from the Ministry of Health of 19 December 2017, which merely gave rise to the automatic renewal of the active substance ‘glyphosate’ for a period no longer than five years, while at the same time extending the authorisations relating to phytosanitary products containing glyphosate until 15 December 2022, without any discretionary assessment, even concerning the technical requirements laid down in Annexes I and II to Regulation (EU) 2017/2325.

The association claims in that regard that, even if the ministerial communication of 19 December 2017 were to be considered to be an implementing measure, the General Court did not take into account the fact that that communication could not be the subject of an action before the national courts because such an action is precluded under Italian law and the relevant case-law (Consiglio di Stato (Council of State), judgment No 6243 of 9 November 2005).

| 4. | The association then claims that the order infringes the last limb of the fourth paragraph of Article 263, in so far as the General Court did not take the subject matter of the dispute, as defined in the application, into consideration. The association notes in that regard that the General Court did not taken into consideration the fact that the direct effects of the contested regulation on the association, and through it on its members, arise from the potentially carcinogenic nature of the active substance ‘glyphosate’ (see the study of the International Agency for Research on Cancer published on 20 March 2015, disregarded in the contested Regulation (EU) 2017/2324), approval of which falls within the exclusive competence of the Member States because the national authorisation of a plant protection product does not involve any assessment concerning the active substance ‘glyphosate’ which was already approved previously by the European Union, which consequently precludes the Italian State from being entitled to authorise or refuse the placing on the market of plant protection products by reference to the active substance ‘glyphosate’. In the present case, the General Court examined the conditions laid down in the last limb of the fourth paragraph of Article 263 without taking into account the arguments put forward in the dispute, that is to say that glysophate residues are present in groundwater, food (pasta) and soil, with the consequent harm that the placing on the market of that substance causes to the territory, citizens of Member States and the interests of the association, and through it, of its members.
  The General Court should therefore have examined the concern within the meaning of the abovementioned Article 263 with regard to that the circumstance and the provisions of the association, as well as with regard to the standing of its members, which it did not do in its order. |
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4.

The association then claims that the order infringes the last limb of the fourth paragraph of Article 263, in so far as the General Court did not take the subject matter of the dispute, as defined in the application, into consideration. The association notes in that regard that the General Court did not taken into consideration the fact that the direct effects of the contested regulation on the association, and through it on its members, arise from the potentially carcinogenic nature of the active substance ‘glyphosate’ (see the study of the International Agency for Research on Cancer published on 20 March 2015, disregarded in the contested Regulation (EU) 2017/2324), approval of which falls within the exclusive competence of the Member States because the national authorisation of a plant protection product does not involve any assessment concerning the active substance ‘glyphosate’ which was already approved previously by the European Union, which consequently precludes the Italian State from being entitled to authorise or refuse the placing on the market of plant protection products by reference to the active substance ‘glyphosate’. In the present case, the General Court examined the conditions laid down in the last limb of the fourth paragraph of Article 263 without taking into account the arguments put forward in the dispute, that is to say that glysophate residues are present in groundwater, food (pasta) and soil, with the consequent harm that the placing on the market of that substance causes to the territory, citizens of Member States and the interests of the association, and through it, of its members.

The General Court should therefore have examined the concern within the meaning of the abovementioned Article 263 with regard to that the circumstance and the provisions of the association, as well as with regard to the standing of its members, which it did not do in its order.

| 5. | On the basis of the foregoing, the association disputes the interpretation of the last limb of the fourth paragraph of Article 263, given by the court of first instance, which deprives that provision of any effect and is contrary to the intention of the European legislature. In that regard, the applicant refers to the findings made by Advocates General in various proceedings (see, inter alia, the Opinion in case C-456/13 P, EU:C:2014:2283 and in joined cases C-622/16 P to C-624/16 P), in accordance with which such a restrictive interpretation would deprive Article 263 of meaning and concrete effect.
  In the light of the foregoing, the association argues that the interpretation of last limb of the fourth paragraph of Article 263, given by the General Court in the contested order is manifestly contrary to Article 47 of the Charter of Fundamental Rights (‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing ...’) and Articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights, thereby hindering the possibility of bringing an action before the General Court on account of direct concern in such a scenario, and causing unjustified harm to the system of protection of rights enshrined in EU law. |
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5.

On the basis of the foregoing, the association disputes the interpretation of the last limb of the fourth paragraph of Article 263, given by the court of first instance, which deprives that provision of any effect and is contrary to the intention of the European legislature. In that regard, the applicant refers to the findings made by Advocates General in various proceedings (see, inter alia, the Opinion in case C-456/13 P, EU:C:2014:2283 and in joined cases C-622/16 P to C-624/16 P), in accordance with which such a restrictive interpretation would deprive Article 263 of meaning and concrete effect.

In the light of the foregoing, the association argues that the interpretation of last limb of the fourth paragraph of Article 263, given by the General Court in the contested order is manifestly contrary to Article 47 of the Charter of Fundamental Rights (‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing ...’) and Articles 6 (Right to a fair trial) and 13 (Right to an effective remedy) of the European Convention on Human Rights, thereby hindering the possibility of bringing an action before the General Court on account of direct concern in such a scenario, and causing unjustified harm to the system of protection of rights enshrined in EU law.

Form of order sought

Associazione GranoSalus claims that the Court should annul the order of the General Court of 15 February 2019 in Case T-125/18, by which it declared the action inadmissible and that the members of the association did not have standing to bring proceedings by reason, first, of the alleged absence of individual effects of the contested regulation on the latter and, second, the existence of national implementing measures also excluding direct concern — and accordingly declare admissible the application seeking annulment of Implementing Regulation (EU) 2017/2324 and the requests for measures formulated therein, including measures of inquiry, and refer the case back to the General Court for a ruling on the substantive grounds of appeal.

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